Indiana lawmakers released a widely awaited “fix” on Thursday to a new Indiana law that, as it exists right now, can be invoked by anti-gay businesses who wish to discriminate against LGBT individuals in violation of local ordinances. The fix does nothing to expand LGBT rights beyond where they stood on the day before Gov. Mike Pence (R-IN) signed the new Indiana law. Nevertheless, it appears to be expansive enough to neutralize attempts to wield the Indiana law as a sword to cut down LGBT rights protections at the local level.
To understand how the “fix” is likely to work, it’s important to first understand the current state of Indiana’s LGBT rights law, as well as how the bill Pence signed into law functions. At the state level, Indiana does not protect LGBT people from discrimination by private businesses. Several Indiana cities and counties, however, including the city of Indianapolis, have enacted local ordinances protecting against many forms of anti-LGBT discrimination.
The law that Pence recently signed is modeled on the federal Religious Freedom Restoration Act (RFRA), although it contains several provisions that are more expansive than federal RFRA. Broadly speaking, RFRAs permit individuals who object to a law on religious grounds to elect not to comply with the law unless the government has a very strong justification for making them obey the law. Prior to the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby, federal RFRA did not permit religious objectors to use those objections to diminish the rights of others. Hobby Lobby, however, changed that balance — at least at the federal level — permitting a company whose owners objected to many forms of birth control to reduce their employees’ access to contraception.
Without the fix, Indiana’s RFRA could enable anti-LGBT businesses to deny service or employment on the basis of sexual orientation or gender identity, even in cities or counties that have enacted anti-discrimination ordinances, so long as the business owner’s discriminatory views are rooted in religious belief. The core provisions of the fix change this equation considerably:
- Indiana’s RFRA will no longer trump state or local laws banning anti-gay discrimination: The fix provides that Indiana’s RFRA does not authorize businesses “to refuse to offer or provide services, facilities, use of public accommodation, goods, employment, or housing to any member or members of the general public” on the basis of a list of protected traits that includes “sexual orientation” and “gender identity.” Another provision provides that the state’s RFRA law does not “establish a defense to a civil action or criminal prosecution” brought against someone who engages in such discrimination. This language appears broad enough to permit local ordinances protecting gay and trans rights to function against business owners with religious objections to LGBT people. It also would enable a similar state law to function, were the Indiana legislature to pass such a law in the future.
- The fix does nothing about Hobby Lobby: At the same press conference where Pence announced that he was open to language protecting against anti-LGBT discrimination, he also cited the Supreme Court’s Hobby Lobby decision as an example of what he hoped the fixed RFRA bill would still accomplish. It remains to be seen whether the Indiana courts will interpret the state’s RFRA bill the way that the Supreme Court read federal RFRA in Hobby Lobby — that is, whether they will allow religious objections to be used to diminish the rights of others. It is likely, however, that state courts will follow the Supreme Court’s lead, as they often do when tasked with interpreting similar laws.
- The fix does not apply to religious groups: Though the fix protects against discrimination by most individuals and businesses, it does still permit RFRA to be invoked by churches, nonprofit religious organizations or clergy who engage in discrimination.
- LGBT people in Indiana gain no new rights from the fix: In the wake of the backlash against the original Indiana RFRA law, many LGBT rights groups hope that the state would enact anti-discrimination provisions protecting gay and trans people in Indiana at the state level. The fix includes none of these protections. What that means is that LGBT people who live in cities like Indianapolis will regain the rights they already enjoyed before the state RFRA law took effect, but LGBT people who were unprotected before this law will remain unprotected.
Although the fix does nothing to expand LGBT rights, anti-gay groups started complaining about it days before its language even became public. Micah Clark, the head of the American Family Association of Indiana who stood behind Pence as he signed the RFRA bill into law, complained on Monday that language preventing the law from being used to discriminate “could totally destroy this bill.” Advance America, another anti-gay group whose leader attended the RFRA bill signing, published an alert claiming that the state legislature is “About To Destroy Religious Freedom Protection in Indiana!“